Below is the settlement agreement between CVS/pharmacy and the American Council of the Blind, the California Council of the Blind and the American Foundation for the Blind. CVS is providing the ScripTalk talking prescription labels through cvs.com mail order to customers across the United States.
CVS will also continue to meet with the organizations to discuss other alternative methodologies to improve accessibility to prescription label information and drug monograph information for patients and customers with visual impairments.
The agreement was reached through Structured Negotiations; no lawsuit was needed. The organizations were represented by Lainey Feingold and by Linda Dardarian of the Oakland California civil rights firm Goldstein, Borgen, Dardarian & Ho.
- If you are blind or visually impaired and want to order prescription medication with the ScripTalk label through cvs.com pharmacy, you can call the cvs.com pharmacy at Correct
888-861-4363. To find out more about the free device you need to listen to the labels, call: 800-890-1180.
- Read the press release about CVS’ Talking Prescription Container initiative.
- Jump to a Simplified Summary of this Document, a feature of LFLegal.com designed to meet WCAG Success Criteria 3.1.5 (a WCAG 2.0 AAA Reading Level requirement).
SETTLEMENT AGREEMENT FOR ACCESSIBLE PRESCRIPTION INFORMATION
This Settlement Agreement (the “Agreement”) is entered into by and between the American Council of the Blind (“ACB”), American Foundation for the Blind (“AFB”), and California Council of the Blind (“CCB”), (collectively, the “Claimants”), and CVS Pharmacy, Inc. (“CVS”). Claimants and CVS are collectively referred to as the “Parties.”
R E C I T A L S
- ACB, AFB and CCB are non-profit organizations that provide advocacy services on behalf of individuals who are blind or who have visual impairments. ACB is incorporated in Washington D.C. and has its place of business in Arlington, Virginia. AFB’s headquarters are in New York, New York, and its Public Policy Center is in Washington, D.C. CCB is incorporated and has its place of business in the State of California.
- CVS owns and operates a nationwide retail pharmacy chain, with stores in California and other states across the United States. CVS also provides retail pharmacy services through its website located at www.CVS.com (“CVS.com”).
- In a March 18, 2010 Demand Letter, Claimants alleged that patient and medication identification, medication usage instructions, expiration and refill information, prescriber identification, and warnings, contained on labels affixed to bottles, vials, boxes, tubes, or other vessels in which CVS dispenses prescription medication to its customers (“Prescription Label Information”), as well as the information contained in written drug monographs federal and state law require CVS and other retail pharmacies to provide with all prescription drugs they dispense (“Drug Monograph Information”), were inaccessible to individuals who are blind or who have other visual impairments that substantially limit the major life activity of seeing. Claimants asserted that Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., the Title III implementing regulations, 28 C.F.R. Part 36, California’s Unruh Act, Cal. Civ. Code §§ 51 et seq., California’s Blind and Disabled Persons Act, Cal. Civ. Code §§ 54 et seq., and other applicable federal, state, local, or administrative laws, statutes, rules, or regulations relating to accessibility for persons with disabilities to public accommodations (“Access Laws”) require CVS to provide various auxiliary aids to improve access to Prescription Label Information and Drug Monograph Information for individuals with visual impairments.
- CVS strives to make its goods and services accessible to all, including individuals with disabilities. Nonetheless, CVS denies that Title III of the Americans with Disabilities Act or any other Access Law requires retail pharmacies to provide accessible packaging or label information; denies that it has engaged in any unlawful or wrongful conduct with respect to the alleged inaccessibility of Prescription Label Information or Drug Monograph Information; and further denies that Claimants or any of their respective boards, staff or members have been injured or have suffered damages in any amount, or at all.
- On or about October 2010, the Parties entered into a Structured Negotiations Agreement that both tolled applicable limitations periods with respect to the claims asserted in the March 18, 2010 Demand Letter, and that required the Parties to enter into negotiations designed to resolve the claims described above.
- The Parties enter into this Agreement to settle and resolve the disputes between them that arise out of or are related to the claims asserted in the March 18, 2010 Demand Letter.
A G R E E M E N T
NOW, THEREFORE, in consideration of the recitals outlined above, and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Incorporation of Recitals.
The recitals outlined above are incorporated by this reference into the terms and conditions of this Agreement.
2. Duration of Agreement.
This Agreement shall become effective on February 15, 2014 (the “Effective Date”) and shall remain in effect until February 14, 2015.
3. CVS’s Responsibilities.
Within ninety days after the Effective Date, CVS shall do all of the following:
- CVS shall issue to all of its retail pharmacies and to CVS.com, the Patients and Customers with Visual Impairments Policy attached to this Agreement as Exhibit “A,” which Claimants and their counsel reviewed and approved prior to execution of this Agreement. CVS shall use Reasonable Efforts (as defined in Section 3.6 below) to ensure that pharmacy personnel at its retail and CVS.com pharmacies comply with the terms of this Policy.
- CVS will continue to evaluate, and the Parties will continue to discuss, the content and format of Large Print Prescription Label Information in accordance with the best practices outlined in the Access Board Working Group’s June 3, 2013 Final Report Regarding Best Practices For Making Prescription Drug Container Label Information Accessible To Persons Who Are Blind Or Visually-Impaired. In the interim, CVS shall use Reasonable Efforts to, upon request and free of charge, continue its practice of printing on separate sheets of paper and providing to patients with visual impairments large font Prescription Label Information in enlarged sans serif font of at least 18 points.
- CVS.com shall use Reasonable Efforts to, upon request and free of charge, affix a ScripTalk audible prescription label (“ScripTalk Label”) to bottles, vials, boxes, tubes, or other vessels containing prescription drugs dispensed through CVS.com to customers who are blind or visually impaired, as described in the Patients and Customers with Visual Impairments Policy attached to this Agreement as Exhibit “A.” CVS and CVS.com shall not be responsible for purchasing, providing or maintaining ScripTalk Label readers used by individual customers. CVS does not warrant the functionality of ScripTalk Labels but will take Reasonable Efforts to replace non-functioning ScripTalk labels upon request by a patient. CVS and CVS.com shall have no obligation under this Agreement to provide audible labels for any other goods or services provided by CVS or CVS.com.
- 3.3.1. The Parties acknowledge that neither CVS nor CVS.com shall be in breach of this Agreement in the event that processing, delivery or use of prescription medications purchased from and mailed by CVS.com is delayed or prevented by circumstances beyond the control of CVS or CVS.com, including (i) the failure or refusal of insurers or other entities to approve the purchase of requested medications; (ii) the failure or inability of delivery services to achieve next-day delivery; (iii) the failure of Envision America to timely provide ScripTalk readers to customers who are blind or visually impaired; (iv) the failure of ScripTalk Labels or ScripTalk label readers to function properly; (v) or other similar failures and delays.
- 3.3.2. CVS retains the right to discontinue offering ScripTalk Labels, so long as its decision is made in good faith and is not intended solely to avoid its obligations under this Agreement. CVS shall use Reasonable Efforts to provide advance notice to Claimants as soon as possible, and shall meet and confer with Claimants to identify possible alternative means of providing audible prescription labels, in the event CVS makes such a decision.
- CVS will train pharmacy personnel at its retail and CVS.com pharmacies regarding: (a) the terms and requirements of the Patients and Customers with Visual Impairments Policy attached to this Agreement as Exhibit “A”; (b) the terms and conditions of this Agreement; (c) informing customers with visual impairments about the availability of ScripTalk Labels, how ScripTalk Labels are ordered through CVS.com, and how ScripTalk readers are ordered from Envision America; and (d) responding to requests for assistance by customers who are blind or who have visual impairments, as outlined in Exhibit “A.”
- In addition to the steps outlined above, CVS shall continue to evaluate alternative methodologies to improve accessibility to Prescription Label Information and Drug Monograph Information for patients and customers with visual impairments, including whether to conform with some or all of the large print prescription label best practices outlined in the Access Board Working Group’s June 3, 2013 Final Report Regarding Best Practices For Making Prescription Drug Container Label Information Accessible To Persons Who Are Blind Or Visually-Impaired. The Parties shall meet, by telephone or in person, at mutually agreeable intervals during the term of this Agreement, to discuss these alternative methodologies. Any agreement the Parties reach shall be memorialized in writing as a further Addendum to this Agreement.
- As used in this Agreement, the term “Reasonable Efforts” shall mean those efforts that a reasonable entity in CVS’s position would take to comply with the terms of this Agreement. The Parties agree, covenant and represent that the term Reasonable Efforts as used in this Agreement does not require CVS or CVS.com to expand the scope of services, or to alter inventory to carry accessible or special products, or to take any actions that are impossible or unlawful, or to take any actions that would result in an undue burden or fundamental alteration as those terms are defined in Title III, the Department of Justice’s Title III regulations and applicable case law.
- Nothing in this Agreement shall prohibit isolated or temporary interruptions in service or access due to maintenance or repair.
- Except as expressly provided in this Agreement, or as further agreed to as part of the negotiations set forth in Section 3.5 above, for the Duration of the Agreement and any Addendum thereto, CVS shall have no further obligation to make Prescription Label Information or Drug Monograph Information accessible to individuals who are blind or who have vision impairments.
4. Joint Press Release.
The Parties may, but are not required to, issue a joint press release to announce the terms and conditions of this Agreement. Neither Party may issue a press release regarding the existence, or terms and conditions, of this Agreement without first disclosing to the other Party in writing the complete contents of any proposed press release, and thereafter obtaining the other Party’s advance written consent to the proposed press release, which consent shall not be unreasonably withheld. A Party’s failure to respond to a written request for consent within five business days after receipt shall be deemed consent to the press release’s issuance.
5. Dispute Resolution Procedures.
- Any Party who believes that another Party has not complied with any provision of the Agreement shall provide that Party with a Notice of non-compliance that identifies each alleged act of non-compliance and provides a statement of the remedial action sought. The Parties shall meet and confer to resolve the alleged non-compliance within 90 days after receipt of each Notice. If the alleged non-compliance is not resolved during this 90 day period, either Party may submit their dispute to nonbinding mediation before a mediator affiliated with JAMS, or such other mediator as the Parties may jointly designate. If the dispute is not settled in mediation within a reasonable period of time, the dispute shall be submitted to binding arbitration before an arbitrator affiliated with JAMS. The arbitration hearing shall be conducted in accordance with the JAMS Streamlined Arbitration Rules & Procedures.
- The Mediation / Binding Arbitration provisions of this Agreement provide the sole and exclusive means for resolving any dispute that may arise between the Parties pursuant to this Agreement during the Term of this Agreement. Claimants shall not, during the Term of this Agreement, individually or collectively initiate legal or administrative action against CVS in any court of law or regulatory entity for any reason related to the subject matter addressed in this Agreement, including but not limited to the accessibility, usability or effective communication of CVS’s Prescription Label Information or Drug Monograph Information to individuals with visual impairments.
6. Notice or Communication to Parties.
Any notice or communication required or permitted to be given to the Parties hereunder shall be given in writing by email and United States mail, addressed as follows:
Linda M. Dardarian
Goldstein, Borgen Dardarian & Ho
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
[email address omitted]
Law Office of Lainey Feingold
1524 Scenic Avenue
Berkeley, CA 94708
[email address omitted]
Elizabeth Liefel Ash
CVS Pharmacy, Inc.
2215 Sanders Road
Northbrook, IL 60062
Phone: (847) 559-4674
Fax: (847) 559-4302
Robert A. Naeve
3161 Michelson Drive
Irvine, California 92612
[email address omitted]
7. Miscellaneous Terms.
- This Agreement compromises disputed claims. This Agreement shall not be treated as an admission of liability by Claimants or CVS at any time, for any purpose.
- This Agreement has been reviewed by the Parties and their respective attorneys and advisors. The Parties have had a full opportunity to negotiate the terms and conditions of this Agreement. Accordingly, the Parties expressly waive any common law or statutory rule of construction that ambiguities should be construed against the drafter of this Agreement. The Parties agree, covenant, and represent that the language in all parts of this Agreement shall be in all cases construed as a whole, according to its fair meaning.
- This Agreement is made and entered into in the State of California and shall in all respects be interpreted and enforced pursuant to the laws of the State of California, without regard to or application of any of California’s conflict of laws rules.
- This Agreement and the Confidential Addendum entered into herewith, constitute a single, integrated written contract expressing the entire agreement of the Parties. There are no other agreements, written or oral, express or implied, between Claimants and CVS with respect to the subject matter hereof. The Parties acknowledge and agree that they execute the Agreement voluntarily and for their own purposes, and that they have not relied upon representations, statements or promises made by any of the other Parties, or by their respective agents or attorneys.
- This Agreement cannot be modified orally or by implication. This Agreement may only be modified pursuant to the terms of a written instrument that is signed by all Parties, and that expresses the Parties’ intent to modify this Agreement.
- The Parties to this Agreement agree, covenant, and represent that each and every provision of this Agreement shall be deemed to be contractual, and that they shall not be treated as mere recitals at any time or for any purpose. Therefore, the Parties further agree, covenant, and represent that each and every provision of this Agreement shall be considered severable. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable for any reason, that provision, or part thereof, shall remain in force and effect to the extent allowed by law, and all of the remaining provisions of this Agreement shall remain in full force and effect and enforceable.
- This Agreement may be executed in counterparts, and if so executed and delivered, all of the counterparts together shall constitute one and the same Agreement. Each party and Counsel shall sign one copy of the Agreement. The Parties agree that CVS will maintain the original executed Agreement. In the event this Agreement is executed in counterparts, any counterpart transmitted by facsimile or electronic method shall be binding as if it were an original.
- No Party to the Agreement has heretofore assigned, transferred or granted, or purported to assign, transfer or grant, any of the claims, demands, or cause or causes of action disposed of by the Agreement. This Agreement shall bind any assigns and successors of the Parties.
- The performance of CVS under this Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome. If CVS seeks to invoke this Section, it shall notify Claimants in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non-performance. Claimants and CVS will thereafter meet and confer regarding CVS’s notice. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be resolved pursuant to the Dispute Resolution provisions of this Agreement.
- The persons executing the Agreement each represent and warrant that he or she has the authority to enter into the Agreement, and to resolve the matters set forth in the Agreement, on behalf of the Party for whom he or she is executing the Agreement, and that no further approval is necessary in order for the Agreement to be binding on the Party for whom he or she is executing.
- Dated: February __, 2014.
CVS PHARMACY, INC.
- Dated: February __, 2014.
AMERICAN COUNCIL OF THE BLIND
By: Melanie Brunson, Executive Director
- Dated: February __, 2014.
AMERICAN FOUNDATION FOR THE BLIND
By: Paul Schroeder, Vice President, Programs & Policy Group
- Dated: February __, 2014.
CALIFORNIA COUNCIL OF THE BLIND
By: Donna Pomerantz, President
Approved as to form:
- Dated: February __, 2014.
By: Robert A. Naeve, Attorneys for CVS
- Dated: February __, 2014.
GOLDSTEIN, BORGEN, DARDARIAN & HO
By: Linda M. Dardarian, Attorneys for Claimants
- Dated: February __, 2014.
LAW OFFICE OF LAINEY FEINGOLD
By: Lainey Feingold, Esq., Attorneys for Claimants
Patients and Customers with Visual Impairments Policy
CVS respects the dignity of all customers and patients, and is dedicated to providing goods and services on a non-discriminatory basis without regard any characteristic protected by applicable law. In particular, CVS strives to make its goods, services and facilities accessible to and usable by individuals with disabilities, as required by Title III of the Americans with Disabilities Act, and other applicable laws. This means that we prohibit discrimination against customers and patients on the basis of disability; that we have made and will make reasonable modifications to our policies, practices, and procedures when necessary to afford access to our goods, services and facilities to individuals with disabilities, and that we have provided and will provide appropriate auxiliary aids and services free of charge in order to ensure effective communication with individuals with disabilities.
This policy regarding provision of accessible goods and services applies to our prescription pharmacy operations. Prescription safety is one of CVS’s highest priorities. Hence, CVS pharmacy professionals will upon request take the following additional steps and provide appropriate auxiliary aids as necessary to provide individuals with visual impairments meaningful access to prescription drug label and monograph information.
CVS pharmacy professionals should explain to patients with visual impairments that information regarding prescription drugs can be found on the prescription label as well as drug monographs accompanying a prescription. CVS pharmacy professionals should describe the structure and categories of information labels and monographs contain, and will read aloud any portion of label and monograph information requested by the patient. Label and monograph information should be read in a private place such as the patient consultation window.
CVS pharmacy professionals will upon request print prescription label information in enlarged font free of charge to customers and patients with visual impairments, using large font formatting CVS implemented in 2012. The large font prescription information will print on a separate 8½ x 11 white sheet of paper to be associated with the prescription order.
CVS pharmacy professionals will upon request advise customers and patients with visual impairments regarding the procedure to be followed to obtain ScripTalk audible prescription labels free of charge through CVS.com, as described in the “Procedure for Obtaining Prescriptions with ScripTalk Audible Labels Through CVS.com” attached to this policy.
Procedure for Obtaining
ScripTalk Audible Labels Through CVS.com
CVS.com will provide ScripTalk audible prescription labels free of charge and on request to its customers and patients with visual impairments. The following information explains the ScripTalk program and its availability to CVS customers.
The ScripTalk Prescription System has two parts: (i) an RFID chip (also called a ScripTalk Label) attached to the prescription medication container; and (ii) a hand-held device known as a ScripTalk reader that will enable a person with a visual impairment to hear the label information encoded on the chip.
When customers or patients with visual impairments inquire regarding the availability of audible prescription labels, CVS in-store pharmacy professionals shall:
- Inform inquiring customers or patients that ScripTalk audible labels are available through mail order from CVS.com, a certified mail order facility.
- Provide inquiring customers or patients with CVS.com’s toll-free telephone number to facilitate the process of enrolling in both CVS.com and obtaining the ScripTalk audible prescription labels.
3. CVS.com will:
- Assist customers or patients with visual impairments requesting that their prescriptions be filled using audible prescription labels to create or update a CVS.com account, and communicate directly with the inquiring customer or patient if additional enrollment or ScripTalk information is required.
- Inform customers or patients who request that their prescriptions be filled using audible prescription labels that a ScripTalk reader is needed to hear information on the ScripTalk Label, and that ScripTalk readers may be obtained free of charge by contacting Envision America’s toll free telephone number or by making a request through CVS.com.
- Where possible and practicable, arrange for next-business-day delivery of newly-ordered prescriptions after the order has been processed and approved, and without additional charge to the patient.
- Where possible and practicable, arrange for delivery of subsequent refills of prescription medications obtained through CVS.com for which the customer previously requested audible labels within the same amount of time that the medications would be dispensed without ScripTalk Labels.
- Where possible and practicable, take appropriate steps to ensure that patient profiles reflect whether a blind or visually impaired customer or patient has requested that prescriptions be filled using audible prescription labels and dispense future prescription medications consistent with the profile.